trial consultants assisting with jury selection.
Generally, jury selection involves attempts to identify
jurors who are sympathetic or unsympathetic toward a
particular party in the litigation. These attempts may be
based on intuitive assessments of potential jurors dur-
ing voir dire or on research-based “juror profiles” that
identify demographic and attitudinal factors associated
with favorable or unfavorable attitudes toward one or
more of the parties and that are developed prior to the
trial. Sources of information about potential jurors
include juror questionnaires administered by the court
in connection with jury pool maintenance and provided
to the attorneys shortly before the trial, community atti-
tude surveys, supplemental juror questionnaires, and
the observation of potential jurors during voir dire
(which can provide information on their verbal and
nonverbal behavior).
Among jurists as well as social scientists, there is
substantial variability in the weight afforded to jury
selection and beliefs about the influence of individual
jurors and jury composition on final verdicts.
Empirical examinations have found that juror demo-
graphic and attitudinal factors account for a relatively
small amount of variance in final verdicts (somewhere
between 5% and 15%). However, it can be argued the-
oretically as well as statistically that in cases where the
strength of evidence on opposing sides is evenly bal-
anced and the litigation stakes are perceived to be high,
even a slight advantage afforded by means of juror pro-
files or other empirically derived diagnostic informa-
tion employed during jury selection can be helpful.
The methodological shortcomings of much of the
early research on jury selection have been pointed to
as possible explanations for the relatively weak rela-
tionships that have been found between juror demo-
graphic and attitudinal characteristics and final juror
verdicts. Jury selection research that has assessed
juror attitudes specific to the characteristics of a par-
ticular case has found stronger relationships between
juror attitudes and final verdicts.CCoommmmuunniittyy SSuurrvveeyyss
Community surveys of jury-eligible individuals
can be used to develop juror profiles to be used as part
of jury selection. They can also be used to assist attor-
neys in assessing the strength of a case, a range of
possible damage awards in civil cases, and the preex-
isting prejudice in the trial venue against one or more
of the parties.To develop juror profiles, surveys are administered
(typically by phone) to a large number of jury-eligible
community members in the trial venue or a surrogate
venue deemed sufficiently similar to the trial venue.
There is no minimum number of required respon-
dents, but as the sample size increases, the margin of
error decreases. Consequently, survey data from hun-
dreds of respondents are required to reach margin-of-
error rates that are generally accepted as reasonable in
social science. The surveys consist of many demo-
graphic and attitudinal questions. In addition, a brief
summary of the case is provided, and respondents are
asked to indicate which side they favor. (This can be
in the form of asking respondents to select a “verdict,”
but that form of measurement is not required.) Data
analyses are then conducted to examine whether par-
ticular demographic or attitudinal factors are consis-
tently associated with a verdict leaning or case
outcome preference in favor of one party or the other.
If a community attitude survey reveals that, in gen-
eral and across demographic factors and various atti-
tudes, jury-eligible individuals heavily favor one side
in a particular case, the trial team may decide to plea
bargain or settle the case rather than go to trial. Survey
results indicating an unbalanced case can also help
place the potential influence of juror demographics
and attitudes in an appropriate context.
Community surveys can be particularly helpful in
civil cases where damage awards may be large or dif-
ficult to estimate. Given the variability typically asso-
ciated with economic measures, a community survey
can be a cost-efficient method of gathering estimates
of damages from hundreds of jury-eligible individuals.
When the ability of a defendant to receive a fair
trial in the trial venue is questioned, trial consultants
can conduct community surveys to assess prejudice in
that venue. And these results may be included in a
motion for change of venue or change of venire.
(Change-of-venue/venire motions are typically sub-
mitted by the defense, but community surveys can
also be conducted by the prosecution or the plaintiff in
a case to counter data presented by the defense.)
Prejudice against a party may result from various
sources, including pretrial publicity, personal experi-
ence with the party, or community gossip and rumor.
Generally, personal experience with the party and
community gossip do not substantially influence prej-
udice in the venue unless the venue is very small
or sparsely populated. Community surveys can then
be designed to assess the content and amount of818 ———Trial ConsultingT-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 818